Partisan politics has produced Supreme Court candidates who lack the character, temperament and intellect for the job. It’s time to appoint these positions.
Our state high court has been spiraling down for years. A few years ago one justice was accused of attempting to strangle another. Last year former Justice Michael Gableman disgraced himself and the Court with his embarrassing “investigation” into non-existent voter fraud in the 2020 election. Of the current seven justices, only conservative Brian Hagedorn has shown any true judicial temperament — that is to say, independence from partisanship — and that only rarely.
And now this. The “this” I refer to is the spectacle of the current race between Janet Protasiewicz and Dan Kelly. To call these two “partisan hacks” is an insult to Tommy Thompson, who then-Dane County Executive and Republican gubernatorial primary opponent Jonathan Barry once called a “two-bit partisan hack.” Tommy turned out to be a statesman. Protasiewicz and Kelly show no such promise.
Protasiewicz is the liberal Democrat and Kelly the conservative Republican in this nominal “nonpartisan” election to take place on April 4th, though early voting is already open. They’ve had, and will have, only one debate, and thank God for that. They sparred last week at an event sponsored by the state Bar Association. It was ugly, undignified and demeaning. I watched it, then took a shower.
Protasiewicz and Kelly spent the hour trading attacks over senseless matters. They were senseless because most of those attacks were over who was tougher on violent crime when, in fact, the Wisconsin Supreme Court rarely tackles a criminal case. It’s almost all dry stuff about civil matters. If you care deeply about insurance law then you should be very into the state Supreme Court.
Instead, Protasiewicz and Kelly, both at the debate and in their awful TV ads, insult the voters’ intelligence by pretending that one or the other will put more of the bad guys in prison for longer. Basically, each accuses the other of being a friend to child molesters.
Protasiewicz has been a circuit court judge in Milwaukee for years, so it was predictable that Kelly’s campaign would scour her record and find instances in which she was “soft on crime.” Sure enough, they came up with a handful of cases, out of thousands that she’s presided over, where she issued sentences that appear to be lighter than what might have been expected. And, for maximum impact, Kelly’s camp chose a couple of cases involving those who prey on children.
What was left out was any context. Turns out those convicted did end up getting some jail time and all got extended supervision and other provisions to keep them away from their victims. Without knowing the details of the cases it’s difficult to know the reasoning behind the sentences, but Protasiewicz cries foul because she’s sentenced thousands of people and a handful of cases amounts to cherry picking the few that make her look bad. It’s a fair point.
But, for her part, Protasiewicz’s attacks against Kelly have been no less egregious. She goes after him for defending predators because he once, 25-years ago, got assigned a case to defend a couple of child sex predators. So, talk about cherry picking. But what if he had made a whole practice out of defending people accused of such crimes? Liberals who fall all over themselves defending the rights of the accused have been eerily silent about Protasiewicz’s attack on criminal defense lawyers.
And when Kelly called her out on it she blamed “the people who put those ads together,” as if the ads run by her own campaign were a surprise to her.
You can read Wisconsin State Journal reporter Chris Rickert’s analysis of the Kelly ads and of the Protasiewicz ads and decide for yourself just how fair they are.
And then there’s the signaling of how they will rule on hot button issues that will come before the Court. Candidates can skirt judicial ethics rules so long as they avoid the magic words “I will rule to…”. While Protasiewicz has all but crossed that line in essentially promising that she will overturn Wisconsin’s restrictive abortion law, Kelly has been more subtle in sending signals that he will do just the opposite, but his signals are still plenty clear.
All of which is to say that, since I don’t trust either candidate to honestly and objectively read and interpret the law, I’ll vote for the liberal hack over the conservative hack. If all this is just a referendum on abortion, well, I’m pro-choice, so I’ll vote for the pro-choice candidate.
But if I had a choice between Protasiewicz and somebody who I thought had the intellect, temperament and character to be a Supreme Court Justice, even if I had no idea how that candidate would vote on abortion, I would pick the mythical objective candidate in a heart beat. What’s more important to democracy in the long-run is not any specific issue, but the independence and integrity of the judiciary as an institution.
There’s no reason to think this will get any better next time. Wisconsin Supreme Court races now invite partisans who will promise to vote liberal or conservative on the hot button issues of the day. The vital role of the courts is to be the umpires of democracy, calling balls and strikes as best they can. But electoral politics has turned this court into just another little legislature.
So, it’s time for Wisconsin to join the other half of states with appointed supreme courts. It’s not that there wouldn’t be some ugliness with that as well. Witness what has become of confirmation hearings for the U.S. Supreme Court, though the proceedings for Amy Coney Barrett and Ketanji Brown Jackson weren’t all that bad.
And I acknowledge that this wouldn’t be foolproof in Wisconsin. After all, Kelly had been appointed to the Court by Republican Gov. Scott Walker to fill an open seat before Kelly was defeated at the next election. And had that appointment required Senate confirmation he would have been easily confirmed by the Republicans in control there.
But how would this have played out in Wisconsin this year? Well, Democratic Gov. Tony Evers would have wanted to appoint someone who he knew would overturn the abortion law and the Republican gerrymander, but he would also have known that the Republican Senate would never approve a nominee like that. So, he probably would have found a lawyer or judge with an impeccable record of service and no obvious political leanings. In other words, exactly the kind of person who should be on the Court. So, this system will work best when we have divided government.
Gubernatorial appointment with Senate confirmation would not be perfect, but it offers promise to produce better justices than what we have now. It’s time for this circus to end. Let’s amend our state constitution and appoint members to our highest court.
If you live in Madison, please consider voting for Badri Lankella for school board. He is a sensible person with a good grasp on the most important challenges facing the district.